oEPA
United States
Environmental Protection
Agency
Office of
Solid Waste and
Emergency Response
DIRECTIVE NUMBER:
9541.00-6
TITLE: State Program Advisory #2 - RCRA
Authorization to 'Regulate Mixed Waste'
APPROVAL DATE: July 30, 1987
EFFECTIVE DATE: July 30, 1937
ORIGINATING OFFICE: osw
& FINAL
•• •• ••
D DRAFT
CTATllC [ ] A~ Pendin8 OMB approval
Pending AA-OSWER approval
! C- For review &/or comment
[ ] D- In development or circulatii
REFERENCE (other documents): headquarters
OSWER OSWER OSWER
VE DIRECTIVE DIRECTIVE Dl
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SEFft
unnoo oiaies cnvironmcnT«i rrotGCiion Agency
Washington, DC 20460
OSWER Directive Initiation Reguest
1. Directive Number
9541.00-6
2. Originator Information
Name of Contact Person
Betty Shackleford
Mail Code
WH-563B
Office
OSW
Telephone Code
(202) 475-9656
3. Title
State Program Advisory #2 - RCRA Authorization to Regulate Mixed Waste
4. Summary of Directive (include brief statement of purpose)
The directive delineates timeframes for obtaining mixed waste authorization, the
authorization requirements, announces the availability of interim status and presents
the EPA position on inconsistencies in accordance with section 1006 of RCRA.
5. Keywords
Mixed Waste
6a. Does This Directive Supersede Previous Directive(s)?
b. Does It Supplement Previous Directive(s)?
No
No
Yes What directive (number, title)
Yes What directive (number, title)
7. Draft Level
A - Signed by AA/DAA
B - Signed by Office Director
C - For Review & Comment
D - In Development
8. Document to be distributed to States by Headquarters?
XX
Yes
No
This Request Meets OSWER Directives System Format Standards.
9. Signature of Lead Office Directives Coordinator
OXMM'JK*' *\. Md^*-^^*
1 0. Name and TIM of Approving Official
Bruce Weddle, Director, Permits and State Programs Division
Date I i
Date
July 30,
1987
EPA Form 1315-17 (Rev. 5-87) Previous editions are obsolete.
OSWER OSWER OSWER O
IE DIRECTIVE DIRECTIVE DIRECTIVE
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OSWER DIRECTIVE #9541.00-6
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
ICE OF
SOLID WASTE AND EMERGENCY
JUL 3 0 1987
MEMORANDUM
SUBJECT: State Program Advisory #2 -
RCRA Authorization to Regulate Mixed Wastes
FROM: Bruce Weddle,
Permits and State Programs Division
Office of Solid Waste
TO: RCRA Branch Chiefs
Regions I - X
The purpose of State Program Advisory (SPA) #2 is fourfold.
One, it delineates timeframes by which States must obtain mixed
waste authorization. Two, it provides a synopsis of the informa-
tion needed to demonstrate equivalence with the Federal program
in order to obtain mixed waste authorization. Three, it presents
information about the availability of interim status for handlers
of mixed waste. And four, the SPA presents the Agency's position
on inconsistencies as defined by Section 1006 of RCRA.
BACKGROUND
On July 3, 1986, EPA published a notice in the Federal
Register (see Attachment 1) announcing that in order to obtain
and maintain authorization to administer and enforce a RCRA
Subtitle C hazardous waste program, States must apply for
authorization to regulate the hazardous components of mixed
waste as hazardous waste. Mixed waste is defined as waste that
satisfies the definition of radioactive waste subject to the
Atomic Energy Act (AEA) and contains hazardous waste that
either (1) is listed as a hazardous waste in Subpart D of
40 CFR Part 261 or (2) causes the waste to exhibit any of the
hazardous waste characteristics identified in Subpart C of 40
CFR Part 261. The hazardous component of mixed waste is
regulated by RCRA. Conversely, the radioactive component of
mixed waste is regulated by either the Nuclear Regulatory
Commission (NRC) or the Department of Energy (DOE).
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OSWER DIRECTIVE #9541.00-6
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In addition, DOE issued an interpretative rule on May 1, 1987
to clarify the definition of "byproduct material" as it applied to
DOE-owned wastes. The final notice stipulated "that only the
actual radionuclides in DOE waste streams will be considered
byproduct material." Thus, a hazardous waste will always be
subject to RCRA regulation even if it is contained in a mixture
that includes radionuclides subject to the AEA. Clarification
of the implications of the byproduct rule was previously transmit-
ted to the Regions (see Attachment 2).
MIXED WASTE AUTHORIZATION DEADLINES
States which received final authorization prior to publi-
cation of the July 3, 1986 FR notice must revise their programs
by July 1, 1988 (or July 1, 1989 if a State statutory amendment
is required) to regulate the hazardous components of mixed waste.
This schedule is established in the "Cluster Rule" (51 FR 33712).
Extensions to these dates may be approved by the Regional
Administrator (see 40 CFR 271.21(e)(3)).
States initially applying for final authorization after
July 3, 1987 must include mixed waste authority in their applica-
tion for final authorization (see 40 CFR 271.3(f)). In addition,
no State can receive HSWA authorization for corrective action
(§3004(u)) unless the State can demonstrate that its definition
of solid waste does not exclude the hazardous components of
mixed waste. This is because the State must be able to apply
its corrective action authorities at mixed waste units.
PROGRAM REVISION REQUIREMENTS
Applying for mixed waste authorization is a simple, straight-
forward process. The application package should include an
Attorney General's Statement, .the applicable statutes and rules,
and a Program Description.
1. Attorney General's Statement
The Attorney General will need to certify in the state-
ment that the State has the necessary authority to
regulate the hazardous components of mixed waste as
hazardous waste. Copies of the cited statute(s) and
rules should be included in the State < application.
See Item I.G., "Identification and Listing" in the
Model AG Statement in Chapter 3.3 of the State
Consolidated RCRA Authorization Manual (SCRAM) for
additional guidance.
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OSWER DIRECTIVE #9541 00-6
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2. Program Description
The Program Description should address how the RCRA
portion of the mixed waste program will be implemented
and enforced, and describe available resources and
costs (see 40 CFR §271.6). The State must also demon-
strate that staff has necessary health physics and
other radiological training and has appropriate security
clearances, if needed, or that the State agency has
access to such people.
If an agency other than the authorized State agency is
implementing the RCRA portion of the mixed waste program,
then the application should include a Memorandum of
Understanding (MOU) between that agency and the autho-
rized hazardous waste agency describing the roles and
responsibilities of each (see 40 CFR §271.6(b)).
Lastly, the Program Description should include a brief
description of the types and an estimate of the number
of mixed waste activities to be reoulated by the State
(see 40 CFR §271.6(g) and (h)). Chapter 3.2, Program
Description, in the SCRAM orovides additional guidance.
INTERIM STATUS
In authorized States, mix-d waste handlers are not subject
to RCRA regulation until the State's program is revised and
approved by EPA to include this authority. In the interim,
however, any applicable State law applies. Treatment, storage
and disposal facilities "in existence" on the date of the State's
authorization to regulate mixed waste may qualify for interim
status under Section 3005(e ) (1)(A)(ii ) (providing interim status
for newly regulated facilities), if they submit a Part A permit
application within 6 months of that date. In addition, any
such facilities which are land disposal facilities will be
subject to loss of interim status, under Section 3005(e)(3),
unless these facilities submit their Part B permit application
and two required certifications (i.e. groundwater monitoring
and financial assurance) within twelve months of the effective
date of the State's authorization (i.e., within twelve months
of the date facilities are first subject to regulation under
RCRA). Note: Federal facilities that handle mixed waste are
not required to demonstrate financial assurance.
With respect to facilities treating, storing or disposing
of mixed waste in unauthorized States, Headquarters is currently
developing a Federal Register notice that will clarify interim
status qualification requirements under Section 3005(e) as they
apply to affected facilities that have not notified in accordance
with Section 3010(a) or submitted Part A and/or B permit applic-
ations. We anticipate issuing the FJR notice early this Fall.
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OSWER DIRECTIVE #9541.00-6
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INCONSISTENCIES
Section 1006 of RCRA precludes any solid or hazardous waste
regulation by EPA or a State that is "inconsistent" with the
requirements of the AEA. If an inconsistency is identified, the
inconsistent RCRA requirement would be inapplicable. For example,
an inconsistency might occur where compliance with a specific RCRA
requirement would violate national security interests. In such
instances, the AEA would take precedence and the RCRA requirement
would be waived.
The EPA and the Nuclear Regulatory Commission conducted a
comparison of existing regulations for hazardous waste management
and low-level radioactive waste management under 40 CFR Parts
260-266, 268 and 270 and 10 CFR Part 61, respectively, to ascertain
the extent of potential inconsistencies. None were identified as a
result of that effort. The comparison did indicate that there were
differences in regulatory stringency, however. Thus, in issuing
permits or otherwise implementing its mixed waste program, States
must make every effort to avoid inconsistencies.
If you have any questions please contact Jim Michael, Chief,
Implementation Section, State Programs Branch (WH-563B) at FTS/(202)
382-2231 or Betty Shackleford, Mixed Waste Project Manager, State
Programs Branch at FTS/(202) 475-9656.
Attachments
cc: Elaine Stanley, OWPE
Federal Facility Coordinators
Regions I - X
Chris Grundler, Federal Facilities Task Force
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OSWE
D nrpprTTVE #9541.00-6
Thursday
July 3, 1966
Part VI
Environmental
Protection Agency
Hazardous Waste: State Authorization To
Regulate Hazardous Components of
Radioactive Mixed Wastes; Notice
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•24504
Federal Register / Vol. 51. No. 128 /
\#9<5>4 1.00-6
ENVIRONMENTAL PROTECTION
AGENCY
[FRL-3041-3]
State Authorization To Regulate the
Hazardous Components of
Radioactive Mixed Wastes Under the
Resource Conservation and Recovery
Act
AGENCY: Enui-onir.iMii.il Protection
Agt!nr>.
ACTION: Notice.
SUMMARY: The Environmental Protection
Axency (EPA) is toddy publishing a
notice that in order to obtain and
m;iinldin authorization to administer
and enforce a hazardous waste program
pursuant to Subtitle C of the Resource
Conservation and Recovery Act
IRCRA). Sidles must have authority to
the hazardous components of
mixed wastes".
"Radioactive mixed wastes" are wastes
th.it contain hazardous wastes subject
to RCRA and radioactive wastes subject
to the Atomic Energy Act (AEA).
DATE: States which have received EPA
authorization prior to the publicity date /
of this Notice must, within one year of ^
the publication date of this notice (two
years if a Slate statutory amendment is
required) (i.e.. by July 3. 1987 and July 5.
T988). demonstrate authority to regulate
thp hazardous components of
rdiJioactive mixed wastes. States
initully applying for final authorization
rificr July 3. 1987 must incorporate this
pro\ ision in their application for final
.iuthonzation. N
FOR FURTHER INFORMATION CONTACT:
Dnnise Hawkins. Office of Solid Waste
(WH-563-B), U.S. Environmental
Protection Agency, 401 M Street SW..
Washington. DC 20-460. (202) 382-2210.
SUPPLEMENTARY INFORMATION:
A. Authorization of State Hazardous
Waste Programs
Section 3006(b) of RCRA provides that
States may apply to EPA for
.1 uthorizdtion to administer and enforce
d hazardous waste program pursuant to
Subtitle C of RCRA. Authorized State
programs are carried out in lieu of the
Federal program. However. EPA is
authorized to implement the Hazardous
and Solid Wast? Amendments to RCRA
(HSWA) (Pub. 1. 98-616) in authorized
States until those States revise their
programs to incorporate the HSWA
requirements and receive EPA
authorization to implement HSWA.
Requirements for obtaining
authorization are set forth in 40 CFR
Part 271. To date. 41 States have
received final authorization (not
including HSWA).
B. Regulation of Radioactive Wastes
Section 1004(27) of RCRA excludes
from the definition of "solid waste".
"source, special nuclear or byproduct
material as defined by (he Atomic
Energy Act of 1954. as amended (AEA)
(68 Stat. 923)." Since "hazardous waste"
is defined by section 1004(5] as a subset
of "solid waste", "source, special
nuclear and byproduct material"_gfg.
exempt from the definition of hazardous
waste and thus from the Subtitle C
program.
While source, special nuclear and
byproduct material are clearly exempt
from RCRA. the extent of the statute's
applicability to wastes containing both
hazardous waste and source, special
nuclear or byproduct material has been
les'evident. The question of which
wastes are encompassed by the term
"byproduct material" has also been the
subject of some controversy. We note
that.the definition of byproduct material^
is currently the subject of rulemakingBy
the Department of Energy (DOE). (50 FR
45736. No'vember_l.J1985)'.
Given the lack of clarity on this issue,
EPA did not previously require as a
condition of State authorization that the
State have regulatory authority over the
hazardous components of radioactive
mixed wastes. In authorizing States.
EPA did not inquire into State authority
over the hazardous components of
radioactive mixed wastes and made no
determination of whether States had
authority over such wastes.
Accordingly, the Agency has taken the
position that currently authorized State
programs do not apply to radioactive
mixed wastes.
Thus, radioactive mixed wastes are
not currently subject to Subtitle C
regulations in authorized States.1 EPA
has now determined that wastes
uom hazardous waste and
radioactive waste are subject to the
RCRA regulation.
Today, we are hereby publishing
notice that, pursuant to 40 CFR 2ri.g
(which requires State programs to
regulate a,'! wastes controlled under 40
CFR Part 261). radioactive mixed waste*
are to be part of authorized State
programs. States that already have
authorized programs must revise their
programs (if necessary) and must apply
for authorization for hazardous
components of radioactive mixed
wastes. States must demonstrate to the
-appropriate EPA Regional Administrator
that their program applies to all
hazardous waste even if mixed with
radioactive waste. This demonstration
must be made within one year of the
publication date of this notice.2 States
1 The exception to thti it in the use of EPA »
HSWA authorities in authorized States EPA can
uie its HSWA authorities to supplement an
authorized Slate't authority over RCRA-reguldted
units. Under f M04(u). EPA can jointly issue a
permit with the Slate and impose corrective action
requirements on hazardous waste management
units and solid waste management units {twmu'sl at
facilities thai contain units subject to RCRA.
Although hjiardous components of radioactive
mixed wastes are not RCRA-r»e>i!diPd under
authorized State RCRA programs. rddio^c:,ve
mixed waste will be considered to be a soJJ
waste" for purposes of corrective action at solid
waste management unita. The Federal deiir.iiiur of
"solid waste" is lo be used in determining uh.it
units an swmu s. because Slate definitions »ere
not scrutinized Therefore, in order to obidin
authorization for corrective action. States must
obtain authorization for their definition of solid
waste, which may not exclude hazardous
components of radioactive mixed wastes Because
radioactive mixed waste is considered a schd was'e
under the Federal RCRA program, units containing
radioactive mixed wastes are swrr.u s and are
tubiect lo corrective action //"there is another unit
requiring a RCRA permit at the facility RCRA
enforcement activities alto apply
* EPA is not promulgating a regulation lodjv
However, in light of the Agency's prev mm pjlic >
we believe il is appropriate to provide ;he time
allowed by 40 CFR 27l.21(e||2l for State program
modifications lo conform lo regula:orv chants
Note that EPA has proposed ;o amend 40 CFR
271.21 lo allow Slates until July 1 of each y* 6. 19d6l
EPA will allow States to use this clustering '
approach for radioactive mixed wastes if dnj when
the revisions to i 2?1.21 are findlly promuls Hed
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OSWER DIRECTIVE #9541.00-6
Federal Register / Vol. 51. No. 128 / Thursday. July 3. 1986 ./ Notices
.'1505
initially applying for firs! authorization
one year after the publication date of
this notice must make this
demonstration in their initial
application.
In most cases, this will require only an
interpretive statement by the State
Attorney General, since most States
hiive the same exception to the
definition of "solid waste" as that
contained in section 7004(27) of RCRA.
Some Slates, howpver. may require
statutory amendments in order to
regulate the hazardous components of
radioactive mixed wastes. Such States.
if already authorized, must revise their
programs within two years of the
publication dale of (his notice. States
initially applying that need a statutory
amendment will have to obtain the
amendment before submitting an
application for final authorization.
In order to demonstrate regulation of
the hazardous components of
radioactive mixed wastes. Slates should
submit to the sppropriate Regional
Administrator a copy of all applicable
statutory and regulatory provisions, plus
a statement by the State Attorney
General to the effect that the State's
hazardous waste progrum applies to
wastes containing both hazardous waste
and radioactive waste as defined by the
AEA. If an agency other than the
authorized hazardous waste agency will
implement the radioactive mixed wastes
program, the authorization application
must include a description of the
agency's functions (see 40 CFR 271.6(b))
and a Memorandum of Understanding
between that agency and the authorized
hazardous waste agency, describing the
roles and responsibilities of each.
The DOE has proposed an interpretive
definition of the term "byproduct
material" (50 FR 45736. November J.
1983), and is now evaluating public
comment. Pending clarification of this
issue, this matter will be addressed on a
case-by-r.ase basis.
We also note that section 1006 of
RCRA precludes any regulation by EPA
or a State which is inconsistent with the
requirements of the Atomic Energy Act.
EPA and the Stale may. tiieri-furc. on H
case-by-case basis use the Huthority of
§ 1006 io modify hazardous waste
requirements to nddress radioactive
mixed wastes activities, pending
issuance of EPA's resuldtion which will
set forth procedures fur addressing the
inconsistency issue. In addition. EPA.
the Nuclear Regulatory Commission
(NRC). and DOE will be working
together to develop guidance.
Notwithstanding any other prov ision
of law. ail requirements of the AEA dnd
all Executive Orders concerning the
handling of restricted datd and national
security information. inch:d'ng "need-to-
know" requirements, shall be applicable
to any grant of access to classified
information under the provisions of
RCRA.
Ddled. June 30. 1986
| Winston Porter.
Assistant Administrator forS,'i ii I! f-'.'-1 _'.•»/
Emeryenry Response.
|FR Doc. 86-15250 Filed r-2-ao 1: 16 pni
BILLING coot «S*O-SO-M
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DIRECTIVE #9541.00-6
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON. 0 C. 204SO
JUN 29-1937
-CS Of
SOulC
MEMORANDUM
SUBJECT:/) Departme
1 bn Mixe
FROM
TO:
Energy's (DOE) Final Byproduct Rule
Regulation at DOE Facilities
ston Porter
Assistant Apministrator
Waste Management Division Directors
Regions I - X
This memorandum is intended to abate any uncertainty
surrounding the implications of the Department of Energy's
(DOE) final byproduct rule on mixed waste r^-iulation at DOE
facilities.
On May 1, 1937 DOE published its final Byproduct rule
(51 £R 15937, copy attached). In that rule DOE stipulates
"that only the actual radionuclides in DOE waste streams will
be considered byproduct material." The effect of this inter-
pretative rulemaking is that all DOE vaste-streams which either
contain a listed waste or exhibit a hazardous characteristic
will be subject to RCRA regulation. You should note that this
interpretation is consistent with the £?A/Nucl
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OSWER DIRECTIVE #9541.00-6
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In March of this year, the MEWS task force issued its final
report which indicated that to a large extent, DOE management of
high-level and tfansuranic mixed wastes were equivalent or superior
to RCHA requirements. Certain areas of their waste management
operations, however, such as ground-water monitoring and chemical
analysis of wastes were clearly deficient. To date, no category
of DOE mixed waste has been exempted from RCRA regulation as a
result of the findings of the MEWS task force.
Thus, all DOE mixed1 wastes are subject to RCRA regulations
independent of the nature of the radioactive component. Therefore,
Regions which are administering RCRA programs in unauthorized
States should, in accordance with priorities established in the
RCRA Implementation Plan, be implementing the program at DOE
facilities. Secondly, those Regions where States have been
delegated mixed waste authority should make it clear that their
authorization includes all DOE mixed wastes. These mixed wastes
may contain high-level, low-level, or transuranic radioactive
constituents. Third, you should continue to encourage States to
apply for mixed waste authorization especially in those States
with major DOE facilities.
Headouarters is committed to providing technical, legal and
policy assistance to the States and Regions in support of efforts
to effect mixed waste regulation at DOE facilities. Accordingly,
I will keep you apprised of any initiatives taken by either DOE
and/or EPA Headquarters affecting mixed waste regulation as soon
as they develop. Specific questions concerning mixed wastes
should be'directed to Betcy Shackleford, OSW on (FTS) 475-9656.
Attachment
cc: Ken Shuster, OSW
Chris Grundler, OSWER
Ray Be rube, DOE
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OSWER DIRECTIVE #9541.00-6
15937
Rules and Regulations
Federal
Vol. 52. No. 84
Friday. May 1. 1987
DEPARTMENT OF ENERGY
10 CFR Part 962
Radioactive Waata; Byproduct Mated*
AQfNCV: Department of Energy.
ACTION: Final rule.
SUMMARY: The Department of Energy
(DOE) today is issuing a final
interpretative rule under section 161p. of
the Atomic Energy Act of 1954 (42 U.S.C.
2011 et seq.: hereinafter "the A£A") for
the purpose of clarifying DOE'S
obligations under the Resource
Conservation and Recovery Act (42
U.S.C. 6901 etseq.; hereinafter "RCRA").
The purpose of this final rule is to
interpret the A£A definition of the term
"byproduct material." set forth in
section lle(l) of that Act (42 U.S.C.
2014(e)(lJ). as it applies to DOE owned
or produced radioactive waste
substances which are also "hazardous
waste" within the meaning of RCRA.
The effect of this rule is that all DOE
radioactive waste which is hazardous
under RCRA will be subject to
regulation under both RCRA and the
AEA. This rule dees not affect materials
that are defined as byproduct material
under section lle(2) of the Atomic
Energy Act.
IFPfCTivi OATtt June 1.1987.
FOft PUftTMIK INFOHMATIOM CONTACT
Henry K. Carson. Esq.. Assistant
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15938
OSWER DIRECTIVE #9541.00-6
Federal Register / Vol. 52. No. 84 / Friday. May 1. 1967 / Rules and Regulations
General Counsel for Environment, GC-
11. Department of Energy, 1000
Independence Avenue SW.,
Washington. DC 20585. Telephone (202)
566-6947.
Raymond P. Berube, Acting Director.
Office of Environmental Guidance and
Compliance. EH-23, Department of
Energy. 1000 Independence Avenue
SW.. Washington DC 20585,
Telephone (202) 586-5680.
SUPMJEMf NTAHY INFORMATION:
Background
RCRA establishes a comprehensive*
regulatory scheme, administered by the
Environmental Protection Agency (EPA)
and EPA-authorized States, governing
the generation, transportation,
treatment, storage and disposal of
hazardous waste. Federal agencies are
required by section 6001 of RCRA (42
U.S.C. 6961) to comply with the
requirements of that regulatory scheme
in the same manner, and to the same
extent, as any private person or entity.
Under section 1004 of RCRA (42 U.S.C.
6903). the "hazardous waste" governed
by RCRA is a subset of the statute's •
definition of "solid waste." The
definition of "solid waste," however.
expressly excludes "source, special
nuclear, or byproduct material as
defined by the Atomic Energy Act."
Those materials, instead, continue to be
regulated under the AEA either by the
Nuclear Regulatory Commission (NRC)
or by DOE.
The AEA's definitions of the terms
"source material" and "special nuclear
material" are specific in nature, and
present no particular difficulty of
interpretation. The AEA's definition of
"byproduct material." in contrast,
speaks only generally of "any
radioactive material (except special
nuclear material) yielded in or made
radioactive by exposure to the radiation
incident to the process of producing or
utilizing special nuclear material." AEA
section lle(l). 42 U.S.C. 2014(e)(l). The
lack of specificity in (hit definition,
coupled with RCRA's exclusion of
byproduct material from iti hazardous
waste regulatory scheme, has raised a
question concerning which DOE
radioactive waste stream*, if any.
should be considered byproduct
material not subject to regulation under
RCRA.
The Proposed Rule
On November 1.1985. DOE published
a notice of proposed rulemaking (50 FR
45736) in which it proposed to adopt an
interpretative rule clarifying RCRA's
applicability to DOE radioactive waste.
Briefly summarized, that proposed rule
would have established a distinction
between "direct process" radioactive
waste (i.e. waste directly yielded in. or
necessary to, the process of producing
and utilizing special nuclear material)
and other radioactive waste less
proximate to the physical process of
producing or utilizing special nuclear
material. Under the proposed rule, direct
process waste, even if it contained
hazardous material, would have been
regarded as byproduct material, and
thus would be regulated exclusively
under the AEA. Any radioactive waste
other than direct proces* watte, if it
contained hazardous material, would
have been considered "mixed waste"
subject to regulation under both RCRA
and the AEA.
As DOE noted the Federal Regiata*
preamble to the proposed rule, the
legislative history of the AEA provide*
little guidance in interpreting the
statutory definition of byproduct
material, and application of the
definition has not been clarified by
judicial interpretation. Because the plain
words of the definition are keyed to the
process for producing and utilizing
special nuclear material, however, it
seemed that process must be regarded
as a critical factor in determining
whether particular radioactive materials
fell within the definition. Accordingly,
one significant feature of the "direct
process" approach, a* discussed in the
preamble to the proposed rule, was its
congeniality with the bare text of the
statutory definition of byproduct
material.
A major consequence of the "direct
process" approach was the fact that it
would result in the exclusive regulation
of all direct process waste under the
AEA. fust as the legislative history of
the AEA provides little help in
interpreting the statutory definition of
byproduct material, the legislative
history of RCRA is silent on the
intended effect of RCRA's exclusion
from its coverage of source, special
nuclear and byproduct material.
Nevertheless. DOE assumed that that
exclusion was intended by the Congress
to be applied to radioactive wastes in
their real-world configuration. Virtually
all radioactive waste substances are
contained, dissolved or suspended in a
nonradioactive medium from which
their physical separation is
impracticable. Accordingly. DOE noted
in proposing the "direct process"
approach that unless some radioactive
waste streams were considered to be
byproduct material in their entirety,
RCRA's exclusion of byproduct material
might reasonably be perceived to have
little effect because RCRA'* application
to a nuclear waste's nonradioactive
medium would appear to entail at least
the indirect regulation of the
radionuclides dispersed in the medium
Such a result, in DOE's-view,
presented substantial legal questions.
Previous court decisions had settled th.
point that the AEA generally vests in
DOE and the NRC exclusive regulatory
authority over the radiation hazards
associated with source, special nuclear
and byproduct material, and generally
preempts the State* from regulating
those materials.1 It had also been held
that when the radiation and
nonradiation hazard* of a wait*
containing byproduct material are
inseparable, regulatory action under the
AEA preempt* the incompatible
exercise of general state nuisance
authority over the waste.* These
decision*, read in conjunction with
RCRA'* affirmation of state regulation
as an acceptable, indeed a favored.
alternative to EPA regulation, were
viewed by DOE as suggesting that an
appropriate interpretation of byproduct
material would, like the proposed
"direct process" approach, exclude
certain radioactive waste stream*, in
their entirety, from regulation under
RCRA.
Development of the Final Rule
At the time of it* publication of the
proposed rule. DOE made available to
the public report* provisionally
identifying which of the waste streams
generated at its facilities would be
considered "direct process waste"
subject only to AEA regulation under
the proposed rule, and which of those
waste streams would be considered
"mixed waste" subject to regulation
under both RCRA and the AEA. DOE
sought and received public comments on
those reports, and on the proposed rule
itself.
During the period since the proposal
was made. DOE has had the opportunity
further to review the pertinent legal
authorities, as well a* to consider the
comments received, the provisional
waste stream identifications. DOE's
additional operating experience, and
related action* taken by other federal
agencies. Based on the review. DOE is
today publishing a final rule that adopt*
a narrower interpretation of byproduct
material than the "direct process"
approach that was originally proposed.
For the reason* set forth below, the final
rule provide* that only the actual
radionuclide* in DOE waste streams
1 Set Northern S«iet« Powtr Co. v. Minimal*.
447 F.2d 1143 (8
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OSWER DIRECTIVE #9541.ob-6
Federal Renter / Vol. 52. NoGW £**&&$£$ WSyfrVp &&&$$*£ Regulations
will be considered byproduct material.
The nonradioactive components of those
waste streams, under the final rule, will
be subject to regulation under RCRA to
the extent that they contain hazardou*
components.
Discussion
The overriding question raised by the
public comments on the proposed rule
waa whether RCRA's exclusion of
source, special nuclear and byproduct
material from regulation under that Act
was intended by the Congress to exempt
entire waste streams, rather than
exempting only the radionuclides
dispersed or suspended in a waste
stream. As discussed above, the
proposed rule woud have treated any
"direct process" waste as byproduct
material in its entirety, even if the waste
contained a nonradioactive chemically
hazardous component that would
otherwise have been subject to
regulation under RCRA. Thus, the
characterization of a waste stream as
"direct process" waste would have
foreclosed the application of RCRA to
that stream irrespective of whether the
associated non-radiological
environmental hazard was significant.
In the opinion of many commenters. this
was a significant disadvantage to the
"direct process" approach. In view of
this concern, some commenters
suggested that DOE instead adopt an
alternative interpretative approach that
would permit the application of each
regulatory regime to the type of hazard
that it was designed to control, i.e. that
would apply the AEA to ensure
protection against the radiological
hazard of this waste, and apply RCRA
to ensure protection against any
associated chemical hazard.
DOE's operational experience since
the publication of the proposed rule
lends support to the concern expressed
by these commenters. In its efforts
provisionally to apply the "direct
process" approach, OOE found a
number of instances in which otherwise
identical wastts wen sometimes found
subject to RCRA. and other times were
found subject only to the AEA. due
solely to the wastM' different proximity
to the physical process of producing and
utilizing special nuclear material. While
distinctions of this type are not entirely
incompatible with the process-oriented
language employed by the Congress in
the AEA to define byproducts material.
DOE has concluded after further
analysis that the better view of the law
is one that avoids such artificial
distinctions and that affords the greatest
scope to the RCRA regulatory scheme.
consistent with the requirements of the
AEA. See Legal Envtl. Assistance Found
v. Model. 586 F. Supp. 1163 (E.D. Tenn.
1984).
As noted in the foregoing discussion
and in the preamble to the proposed
rule, the legislative histories of both
RCRA and the AEA provide little
assistance in interpreting either the
meaning of the term byproduc* material
or the intended effect of RCRA's
exclusion of byproduct material from the
hazardous waste regulatory program.
The House Committee on Interstate and
Foreign Commerce, in reporting its
version of the bill that ultimately waa
enacted as RCRA alluded to a 1973 leak
of radioactive waste from a OOE under-
ground storage tank at Richland.
Washington as an "actual instance [ ] of
damage caused by current hazardous
waste disposal practices." H.R. Rep. No.
1491,94th Cong., 2d Sess.. pt. 1. at 17-19,
reprinted in 1976 U.S. Code Cong. A
Admin. News 6238.6254-47. This
reference is a less than certain
indication that the Congress viewed
such radioactive waste as "hazardous
waste" subject to RCRA. Unlike RCRA
as finally enacted, the bill' which this
House Report accompanied contained
no provision excluding source, special
nuclear and byproduct material, thereby
minimizing the probative value of the
Committee's Richland reference in
construing the statute that was
ultimately enacted. Nevertheless, the
Committee's reference should not be
entirely discounted as evidence :hat the
Congress in considering RCRA was
concerned with unregulated hazards
presented by radioactive waste, even
though the AEA already provided
sufficient regulatory control over the
radiological hazards associated with
such waste.
No court has addressed the specific
question whether the entirety of a
nuclear waste, or only its radioactive
component, is byproduct material.4 The
decision in Brown v. Kerr-McGee Chem.
Corp.. supra note 2, clearly holds that
the States cannot employ their general
authority to abate nuisances to regulate
even the nonradiation hazard of a waste
incompatibly with regulation done under
the AEA where the radiation and
nonradiation hazards are inseparable.
Nothing in that decision, however, is
incompatible with concurrent regulation.
1 H.R. 14496. 94th Con*. Id Sttl. (1978).
4 Two decisions have upheld Iht authority of the
NRC's predecessor agency, tht Atomic Energy
Commission, to licenae low Icval radioactive want
as byproduct malarial. Ham* County v. United
Stales. 292 F2d 370 (Sir, Cir. 1941): City of New
Britain v. Atomic Energy Conun'n. 308 F.2d 645 (O.C
Cir. 1962). In neither case, however, did the court
reach the specific question whether the entirety of
the waste, or only ita radioactive component, is
byproduct material.
by the States or EPA. of the
nonradioactive component of a nuclear
waste, subject to paramount
requirements of the AEA.*
In this context DOE notes that at the
time the Congress was considering
RCRA, the Supreme Court very recently
had published its decision in Train v.
Colorado Pub. Interest Research Group
428 U.S. 1 (1976). That case decided
whether the Federal Water Pollution
Control Act. as amended in 1972.
applied to source, special nuclear and
byproduct material discharged into
navigable waters by government-owned
production facilities and commercial
power reactors regulated by the AEA.
After concluding that the Federal Water
Pollution Control Act. properly
construed, did not authorize EPA or the
States to regulate source, special nuclear
and byproduct material, the Court
rejected the contention that the Water
Act contemplated joint regulation of
source, special nuclear or byproduct
material effluents. 426 U.S. at IS. The
practical effect of the Court's decision.
however, was a regime of concurrent
regulation, by different authorities, of
effluent streams containing both
radioactive and nonradioactive
components. Specifically, the decision
left EPA and the States free to regulate,
under the Water Act the nonradioactive
component of liquid effluents from
nuclear facilities, while reserving to the
NRC and DOE's predecessor agency all
regulatory authority over the source.
special nuclear and byproduct materials
contained in those same effluent
streams.
The legislative history of RCRA
contains no mention of the Train
decision. However, the Congress is
presumed to be aware of decisions of
the Supreme Court* and in fact
employed in RCRA the same AEA
terms, including byproduct material, that
the Court had extracted from the Water
Act's legislative history to emphasize in
its analysis in Train. Thus it is at least
equally logical to infer that the
Congress, in selecting the AEA terms
emphasized in Train, anticipated a
similar result under RCRA as it is to
posit—as did the proposed rule—that
RCRA's exclusion of byproduct material
must have been intended to exclude in
their entirety some waste streams from
regulation under RCRA.
In short, while the specific legal
authorities relied upon by DOE in
developing the proposed rule appeared
consistent with the "direct process"
• SM discussion of RCRA section lOOBfal. USC
8806(ai infra
• Gary v. Curtis, 44 U.S. (3 How. 12% 240 (18451.
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OSWER DIRECTIVE #9541.00-6
15940 Federal Hagtater / VoJ. 52. No. 84 / Friday. May 1. 1«7 / Rule* and Regulations
approach. thoM authorities are «q»al]y
consistent with the narrower
Interpretation nf Tijrprndiirl autmiiil that
was suggested by the majority of the
commenters on the proposed nde. More
importantly, DOB it now persuaded
after farther analysis mat the "direct
process' approach doea not reflect the
better view of the taw.
RCRA is a remedial statute, aad as
such must to liberal!/ coaetmed lo
effectual) the »»«»Hu] purpose for
which H was anactad.' The 'r"T*"M
comprehensiveness of RCRA'*
regulatory schema is evident from the
Act's legislative history. The principal
sponsor of the legislation in the Senate
emphasized that it represented "a major
commitment of federal assistance to
•late and local government efforts to
meet {hazardous and solid waste)
problems in a comprehensive and
effective manner." • The House
Committee on Interstate and Foreign
Commerce regarded the legislation as
closing the "last remaining loophole" *
in a framework of national
environmental laws that already
included the Clear Air Amendments of
1970. the Federal Water Pollution
Control Act Amendments of 1972. and
the Safe Drinking Water Act
Moreover, interpretation of RCRA's
exclusion of byproduct material must
not focus solely on tint exclusion, read
in isolation. Instead the exclusion can
be viewed properly only in the context
of the whole statute, as wet! as its object
and policy.' ° In this connection, it
seems apparent that RCRA was
intended to have some applicability to
materials that were already regulated
under the AEA. Section 1006(a) of
RCRA, 42 U.S.C 6fl05(aJ. specifies that
as to "any activity or substance" subject
to the AEA. RCRA regulation must yield.
but only to the extent of "inconsistent"
requirements stemming from the AEA.
The archetypal "substances" that can
fairly be described as "subject to" the
AEA are substances contaiainf source.
special nuclear and byproduct material.
to which the AEA expressly is directed.
Thus the language of section 1006(a)
seems generally to contemplate
complementary regulation under both
statutes of substances that under prior
law might have been regulated
exclusively by the AEA.
Viewed in (Us light RCRA's
definitional exclusion of source, special
attclear and byprodact material ssmmes
a narrower i**A'""*> than was
' See. 04. Weatoehoutaeiee. Corp. v. Pacific
Cdi * Elec. Co- J2S F.Zd S7S (Bth Of UMj.
• 122 Cong, Rec. 21W! (1*781 (remark* of Sen.
• H.R. Id* *•. S*-1*M. 9** Cong.. 2d Set*., pi. 1.
at 4. repnnttd in 1978 U.S. Code Cong. » Ad. Newt
8238. 6241.
*• Se* e.g.. RicJitrdi v. United Slaiet, 388 U.S. 1.
tl (1982).
suggested ia tb» proeosed rule. Instead
of referring to any waste stream m its
entirety, the e«dttsM« appears directed
only to the readioactive component of a
nuclear waste. The result however, is a
more harnvnninir view of the statute as
a whole. Read together. DOE believes
that the fWraitkiasI exclusion aad the
language of section 10M(a) are correctly
understood to provide ior tae regulation
under RCRA of all hazardous waste.
including waste tfcat is also radioactive
RCRA does not apply to the radioactive
component of such a waste, however, if
it is source, special nuclear or byproduct
material, instead, the AEA applies to
that radioactive component. Finally, if
the application of both regulatory
regimes proves conflicting in specific
instances. RCRA yields to the AEA.
In addition to construing the whole of
RCRA in harmony, this interpretation
results in according both RCRA and the
AEA the greatest capacity to regulate
effectively the special type of hazard
that each statute was designed to
control. Since the two statutes are not in
irreconcilable conflict but are capable
of co-existence, they should be
interpreted such that the operation and
objectives of each are facilitated. See
Radzanowef v. louche Ross & Co* 428
U.S. 148. 155 (1978). However, in issuing
today's final rule, DOE emphasizes the
importance of section 1006(aj in
resolving any particular inconsistencies
that may occur between the
requirements of RCRA and those of the
AEA. DOE is the federal agency
responsible for authoritatively
construing the requirements of the AEA.
as that Act applies to DOE activities.
While DOE does not anticipate that
adoption of today's final rule will lead to
frequent cases of "inconsistency. "
section lOOOfa) provides critical
assurance that the implementation of
the final rule will present no impediment
to the maintenance of protection from
radiological hazards as well as DOE'S
accomplishment of its other statutory
responsibilities under the AEA.
A final consideration in adopting
today's final rule is the rule's
consistency with the legal position
adopted by EPA and the N'RC in
resolving questions concerning RCRA's
application at NRC-licensed commercial
nuclear facilities. In a recent guidance
document developed jointly by EPA and
the NRG" the two agencies stated that
1' 'Guidance oa the Definition tad Identification
of CommarctaJ Mixed Low level Radioactive and
Hezardnui Watt«." fan. 5.19B7
for commercial low-level radioactive
waste containing a hazardous
component they will regard only In*
actual radioaMdtdes m the waste as
being exempt from RCRA. Today's final
rule adopts the same approach for all
DOE radioactive and chemically
hazardous waste
Accordingly, for purposes of RCRA.
DOE interprets the term byproduct
material to refer only to the radioactive
component of a nuclear waste. The
nonradioactiw chsaxicafly hazardous
component of the waste will be subject
to regulation under RCRA.
Proceajuns eutasrs
A. Executive Order 12291
This rule baa been reviewed in
accordance with Execstiv* Order 12291.
The ruie is not classified as a major rule
because it does not meet the criteria for
major rules established by that Order.
B. National Environmental Policy Act
This rule is an interpretative rule
intended only to clarify the meaning of a
statutory definition. Issuance of the rule
will have no enrtronmentii impact
C Regulatory Flexibility Act
Certification
The rule will not have a significant
impact on a substantial number of small
entities.
O. Paperwork Reduction Act of 1900
There are no information collection
requirements in the rule.
List of Subjects ia !• CFR Part 912
Nuclear materials. Byproduct
material
Issued in Washington. DC. April 27. 1987
|. MichMl Fcmll.
General Counsel
In consideration of the foregoing. Part
962 is added to 10 CFR Chapter III. to
read as follows:
PART 962—BYPRODUCT MATERIAL
Sec.
962.1 Scope.
962.2 Purpose.
962.3 Byproduct material.
Authority: The Atomic Energy Act uf 1954
(42 U.S C. 2011 et seq.): Energy
Reorganization Act of 1974 (42 L'.S.C. 5801 et
spq.): Department of Energy Organization Act
(42 C S.C. 7101 tt seq.): \udear Waste Policy
Act I Pub. L 97-«25. 98 Stat. 22011.
§962.1 Scope.
This Part applies only to radioactive
waste substances which are owned or
produced by the Department of Energy
at facilities owned or operated by or for
-------
OSWER DIRECTIVE #9541.00-6
Federal Reyater / Vol. 52. No. 84 / Friday. May 1. 1987 / Rules and Regulations 15941
the Department of Energy under the
Atomic Energy Act of 1954 (42 U.S.C
2011 tt set)). This Ptrt doe* not apply to
substances which are not owned of
produced by the Department of Energy.
The purpose of this Part is to clarify
the meaning of the term "byproduct
material" under section lle(l) of the
Atomic Energy Act of 19S4 (42 U.S.C.
2014(e)(l)) for use only in determining
the Department of Energy's obligations
under the Resource Conservation and
Recovery Act (42 U.S.C. 6901 tt seq.)
with regard to radioactive waste
substances owned or produced by the
Department of Energy pursuant to the
exercise of its responsibilities under the
Atomic Energy Act of 1954. This Part
does not affect materials defined as
byproduct material under section lle(2)
of the Atomic Energy Act of 1954 (42
U.S.C 2014(eM2)).
JM24 Byproduct material
(a) For purposes of this Part, the term
"byproduct material" means any
radioactive material (except special
nuclear material) yielded in or made
radioactive by exposure to the radiation
incident to the process of producing or
utilizing special nuclear material.
(b) For purposes of determining the
applicability of the Resource
Conservation and Recovery Act (42
U.S.C. 6901 et seq.) td any radioactive
waste substance owned or produced by
the Department of Energy pursuant to
the exercise of its atomic energy
research, development, testing and
production responsibilities under the
Atomic Energy Act of 1954 (42 U.S.C.
2011 et seq.), the words "any radioactive
material." as used in subsection (a),
refer only to the actual radionuclides
dispersed or suspended in the waste
substance. The nonradioactive
hazardous component of the waste
substance will be subject to regulation
under the Resource Conservation and
Recovery Act.
|FR Doc. 87-0685 Filed 4-30-87: 8:45 am)
MXMO COM MM-41-M
FEDERAL RESERVE SYSTEM
12 CFR Parts 207,220.221 and 224
Regulation* 0, T, U and X; S«currtita
Credit Transaction* Uat of Marglnabl*
OTCStoefca
AOINCY: Board of Governors of the
Federal Reserve System.
ACTKMC Final rule: determination of
applicability of regulations.
SUMMARY: The List of Marginable OTC
Stocks is comprised of stocks traded
over-the-counter (OTC) that have been
determined by the Board of Governors
of the Federal Reserve System to be
subject to the margin requirements
under certain Federal Reserve
regulations.. The List is published four
times a year by the Board as a guide for
lenders subject to the regulations and
the general public. This document sets
forth additions to or deletions from the
previously published List effective
February 10,1987 and will serve to give
notice to the public about the changed
status of certain stocks.
tpncnvi DATi: May 12.1987.
row pufmtnt fNtoftMATtoN CONTACT
Peggy Wolffrum. Research Assistant.
Division of Banking Supervision and
Regulation. (202)-452-2781. For the
hearing impaired only, Earnestine Hill or
Dorothea Thompson,
Telecommunications Device for the Deaf
(TDD) (202HS2-3544. Board of
Governors of the Federal Reserve
System. Washington. DC 20551.
SUPPLEMENTARY INFOftMATlON: Set forth
below are stocks representing additions
to or deletions from the Board's List of
Marginable OTC Stocks. A copy of the
complete List incorporating these
additions and deletions is available
from the Federal Reserve Bank*. This
List supersedes the last complete List
which was effective February 10.1987.
(Additions and deletions for that List
were published at 52 FR 3217, February
3.1987). The current List includes those
stocks that meet the criteria specified by
the Board of Governors in Regulations
G. T. U and X (12 CFR Parts 207. 220. 221
and 224. respectively). These stocks
have the degree of national investor
interest, the depth and breadth of
market, and the availability of
information respecting the stock and its
issuer to warrant regulation in the same
fashion as exchange-traded securities.
The List also includes any stock
designated under an SEC rule as
qualified for trading in the national
market system (NMS Security).
Additional OTC stocks may be
designated as NMS securities in the
interim between the Board's quarterly
publications. They will become
automatically marginable at broker-
dealers upon the effective date of their
NMS designation. The names ot these
stocks are available at the Board and
the Securities and Exchange
Commission and will be incorporated
into the Board's next quarterly List.
The requirements of 5 U.S.C. 553 with
respect to notice and public
participation were not followed in
connection with the issuance of this
amendment due to the objective
character of the criteria for inclusion
and continued inclusion on the List
specified in 12 CFR 207.8 (a) and (b),
220.17 (a) and (b). and 221.7 (a) and (b).
No additional useful information would
be gained by public participation. The
full requirements of 5 U.S.C. section 553
with respect to deferred effective date
have not been followed in connection
with the issuance of this amendment
because the.Board finds that it is in the
public interest to facilitate investment
and credit decisions based in whole or
in part upon the composition of this List
as soon as possible. The Board has
responded to a request by the public and
allowed a two-week delay before the
List is effective.
Ust of Subjects
12 CFR Part 207
Banks. Banking, Credit. Federal
Reserve System. Margin. Margin-
requirements. National Market System
(NMS Security), Reporting and
recordkeeping requirements, Securities.
12 CFR Part 220
Banks. Banking. Brokers. Credit.
Federal Reserve System. Margin. Margin
requirements. Investments, National
Market System (NMS Security).
Reporting and recordkeeping
requirements, Securities.
12 CFR Part 221
Banks. Banking, Credit, Federal
Reserve System. Margin. Margin
requirements. Securities, National
Market System (NMS Security),
Reporting and recordkeeping
requirements.
12 CFR Part 224
Banks. Banking. Borrowers. Credit.
Federal Reserve System. Margin. Margin
requirements. Reporting and
recordkeeping requirements. Securities.
Accordingly, pursuant to the authority
of sections 7 and 23 of the Securities
Exchange Act of 1934. as amended (15
U.S.C. 78g and 78w), and in accordance
with 12 CFR 207.2(k| and 207.6(c)
(Regulation G). 12 CFR 220.2(s) and
220.17(c) (Regulation T), and 12 CFR
221.2(j) and 221.7(c) (Regulation U).
there is set forth below a listing of
deletions from and additions to the
Board's List:
Deletions From List
Stocks Removed for Failing Continued
Lilting Requirements
American Aggregates Corporation
No par common
Bio-Medicus. Inc.
Warrants (expire 06-31-88)
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